Introduction

The word ‘Bail’ has not been defined in the Code of Criminal Procedure, 1973 (here, ‘the Code’). The definition of bail is available at various sources. Chapter 33 of the Code deals with provisions relating to bail in India.[i] The basic scheme of granting bail is a legislative division or judicially evolved conditions.[ii] In many judgements, it has been held that bail is a matter of right, whereas jail is an exception.[iii] Since the enactment of the Code, there have been a few amendments to Chapter 33 of the Code.[iv] Despite the judgments and amendments, the Code lacks a proper system or framework to govern the bail procedure. Due to the lack of guided and vivid precedents, and definitive legislation there have been inconsistencies in matters related to bail. For instance, recently in INX Media case, the bail application of P Chidambaram, whose name was not registered in the FIR, was denied bail whereas his son, Karti, the one of the accused in FIR, was granted a bail.  These orders indicate vagueness and inconsistencies on proper judicial clarity in bail matters.

The problems which persist in the bail framework has called for reforms from time to time. These have been addressed to an extent but not satisfactorily. The article will analyse the reforms on bail. The basis of this article is two primary contentions on which the objective of a bail lies, (a) no need for unnecessary detention of the person even when his appearance in the court can be assured by other methods and (b) the presumption of innocence until proven guilty. One of the significant criticisms against the grant of a  bail which is argued, since its existence, is the inequality and the privilege  of the affluent. The bail as a right has turned rather into a right of only the wealthy people and not of the  poor.

Bail Reforms for Indigent Person

The bail as a concept also facilitates in avoiding overcrowding in the jails due to undertrial prisoners.  In the case of Hussairana Khatoon, where the plight of undertrial prisoners was addressed, Justice Bhagwati made an observation where he questioned the criminal justice system highlighting that the poor cannot furnish bail on a personal bond without sureties. To address the plight of these undertrial prisoners at the legislative end, the Code was amended in 2005. 

The 2005 amendment to the Code added two new elements- Firstly, granting bail on the personal bond to a person who is indigent without sureties. Secondly, the addition of provision 436A, which further extended the scope of the right of bail application where the accused is incarcerated for the certain period prescribed in the provision. The intention behind the amendment is laudable. However, these provisions only extend the scope of the bail as a right. The person who is indigent or who has served maximum punishment under trial for the offence gets right to apply for bail, however, not to be released on bail as the financial obligation becomes another obstacle. The condition precedent lies “released by the court on a personal bond with or without sureties.”

This reform of amending the ‘provision relating to bail’ has not been beneficial.  Relying on 2009 National Crime Records Bureau, out of 3, 76, 696 prisoners, 2, 50, 204 prisoners (that is roughly around 66%), were under trial. In 2017, the Law Commission of India in its 268th report, it referred to statistics that 67% of the prison population constitute undertrial prisoners. The Law Commission in the report has laid emphasis relying on  Lawyers’ Right Watch Canada’s Handbook on Pre-trial,  stating that if a  country has more than 50% of all its detainees as undertrial prisoners, then there is something wrong with the criminal justice system. The problem persists because poor people are sometimes not able to furnish the bail bond amount, even without sureties and organisations like Amnesty International (India) are fighting for bail reforms. It indicates that ‘bail is a rule; jail is an exception’ is limited in its application only to the affluent people. To make an accused adhere to bail conditions and to ensure his appearance before court, the basic premise is to burden him with financial obligation. The problem is that the courts have sometimes overlooked the economic state of the person before imposing these conditions.

This problem was rightly addressed in the report of a committee headed by Justice Krishna Iyer, in 1973. The committee suggested a liberal approach to the problem by releasing an indigent person on his own recognizance, without sureties or monetary risk, with punishment, if in violation, provided in the Code. However, the primary reason for burdening the person with financial obligation was to oblige him to adhere to the condition imposed while granting the bail.[v] Releasing a person without any financial obligation or any other risk might lead to an increase in instances of absconding, which cannot be just deterred by providing punishment under the Code.

The Law Commission in its 268th report noted that every case of bail application should be decided on a case to case basis. The person may be released with or without any financial obligation which should be reasonable depending on the case. For instance, for a person who is a driver by profession and is accused of some offence, the court may ask him to deposit his driving license, a condition precedent for release. To solve the problem of an indigent person not getting the bail, the commission recommends that putting a financial obligation on an individual should be the last resort in the procedure of granting bail. In the event of the court requiring the individual to deposit his license or any such document, then the court should provide the person with an attested and a certified copy of the same while keeping the original version with the court.

In considering the reforms on bail, the question of absconding is pertinent to the case. The court must look at the circumstances and the situation of the person before granting or denying the bail. For instance, the court should look into the family background, job or its roots in the community, among other things. These recommendations were on similar lines as the judgement authored by Justice Krishna Iyer in Moti Ram Case, in which he addressed the flaws of the bail system.

These conditions of the bail imposed should be checked by means, for instance, informing the police to check up on the person. The later part of the recommendations of the commission might require more effort and human resources. The court needs more of an inquisitorial approach to check the background of the person, his social standing and other relevant things. This reform also calls for a majorly determined police structure to implement this system. However, as a last resort, the court may impose a surety condition along with a  financial obligation, keeping in mind the capacity of the person. The committee in its recommendation has given a non-exhaustive list of the conditions that may be imposed.

This approach of the commission might not add to the objective of the bail where the purpose is to assure the appearance of the person. In the example, if a driver after being his licensed seized is getting a certified copy of the same from the court which serves the same purpose as the original one then it does not create any obligation or any form of monetary risk or otherwise which assures his presence in court.  There are two perspectives to gauge the reform by the law commission and the existing law. A balanced approach between both perspectives could lead to a better alternative for reforms. Firstly, in the existing framework, the bail bond ascertained by the court should reflect a reasonable amount  imposed to furnish bail.

In the Moti Ram Case, the Supreme Court stated in the judgement, that it shook the conscience of the court where a mason was asked to furnish a bail bond of 1, 00, 00 rupees. The amount was reduced to 1, 000 rupees by the apex court. The courts have been given discretion in ascertaining the amount for bail bonds. The court should look into the economic conditions of the accused before ascertaining the amount of bail bond.  Since the court has this discretion and Section 436 provides for personal bonds, there lies no problem in the existing law. The court will look into the job and economic condition, and decide the amount accordingly. However, under the lens of the second perspective, one could say that the amount of bail should be reduced to 200 or 1 00 rupees. But then, even an amount as small as 100 becomes a matter of survival for the person. Now, in this situation, maybe, the recommendation of the commission on bail for an indigent person can be considered. Once comparing the two, it is realised that we need something like a balance which acts as a reform to reduce or  root out, the travesty of the justice to the poor, as mentioned above

Need for a Separate Legislation?

In the past few years, there have been heated debates concerning provisions relating to bail. Multiple factors have made it imperative to streamline the bail provisions in the Code. The inconsistent approach of the courts in granting bail, coupled with various other aggravating factors have led to the withering of the value of bails. In the Pappu Yadav case,  before the appeal to the Supreme Court, ten bail applications earlier were rejected citing the reason of seriousness of the offence and consequently accused was in detention for more than seven years. Earlier in  Natabar Parida Bisnu Charan v. State of Orissa, the court held that even when the offence committed by the accused is of severe or ghastly nature, it does not take away his right of entitlement to be released on bail.  It was against the basic tenet of presumption of the innocence. However, it can be argued that then in every case bail should be granted. In addition to this, the bail is authorised on circumstance like the gravity of offence, evidence etc. In Pappu Yadav Case, the prosecution had completed the evidence stage and hence, no question of tampering the evidence was in contention. The Supreme Court overlooked the delay in trial and that resulted in the deprivation of the liberty of the person.

Again in 2012, in the case of Sanjay Chandra, the Delhi High Court’s act was more disguised as an arbitrary than a discretionary power. The court allowed pre-trial detention in the case where the investigation was complete. Further, there was no substantial evidence which was placed before the court indicating tampering with the evidence. Consequently, the accused was under six months of detention without any charges framed under the Code citing the reason of economic offence involving millions. In an appeal,  the Supreme Court granted the bail observing his right of liberty under Article 21. However, recently in INX Media Case, P Chidambaram’s anticipatory bail application in the Supreme Court and the bail application in Delhi High Court was rejected.  It was observed that economic offences are a class apart and matters related to bail in economic offences should be dealt differently.  It shows inconsistency and with respect to the application of the law related to bail.

In 2015, the Law Commission was asked by the Law Ministry to analyse and examine the need for separate legislation for bail. However, in the 10th meeting of the Advisory Council for Justice Delivery and  Legal Reforms, it was decided that there is no need for separate legislation for the bail system in India and instead, reforms should be inculcated as an amendment to the Code. The need for a standalone law was ruled out, and hence, the law commission of India in its report suggested the reforms as an amendment to the Code.

Conclusion

Through this article, one can conclude that the existing bail system is inconsistent and has failed to deliver justice to the poor.  The court should always stand on the basic tenet of the criminal system of presumption of innocence. The court should create a balance between societal interests and individual interest in granting or denying bail. In its 131 pages report, the Law Commission concluded that the bail system in India is ‘inadequate and inefficient’. The Law Commission has observed many aspects concerning the bail reforms which are addressed in the report and underscored the seriousness of need of the reforms to be implemented. However, reluctant to the idea of separate legislation, the Law Commission suggested a 9-page long amendment which needs to be addressed immediately.

Recently, in an unprecedented step, the Supreme Court decided to have a single bench to hear bail applications (and transfer of cases). This step is laudable; however, the Code does not envisage the appeal of bail to the Supreme Court. One can only appeal through a special leave petition under Article 136.[vi] Hence, this reform in the bail system is needed for a properly structured bail appellant jurisdiction.   In the matter of a bail where the constitutional rights of the person are at stake, it should not be handled lightly. In the past, there has been a lot of confusion and inconsistency between the courts, and significant shortcomings in legislation concerning bail matters. There should be proper standalone legislation, as in the United States (Bail Reforms Act) or the UK (Bail Act), which renders a  better clarity to the bail system, instead of amending the existing provisions.


[i] The Code of Criminal Procedure, 1973, Chapter XXXIII

[ii] RV Kelkar, Criminal Procedure 290 (6th ed. 2012)

[iii] Sanjay Chandra v. CBI (2012) 1 SCC 40; Rao  Harnarain Singh  v. State, AIR 1958 P H 123

[iv] The Code of Criminal Procedure, 1973, Chapter XXXIII

[v] The Law Commission of India, 268th Report, 78

[vi] The Constitution of India, Article 136


About the Author: Rajat [2018-23] is pursuing B.A.LL.B (Hons) from National University of Juridical Sciences, Kolkatta.


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